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Wisconsin Supreme Court accepts three new cases

Madison, Wisconsin -
February 27, 2014

The Wisconsin Supreme Court has voted to accept three new cases and acted to deny review in a number of other cases. The case numbers, issues, and county of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked where available. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2012AP55 State v. Andres Romero-Georgana This sexual assault case involves a defendant's claim that his postconviction counsel provided ineffective assistance by challenging the circuit court's sentencing decision rather than raising a plea withdrawal claim based on the circuit court's failure to orally advise the defendant of the deportation consequences of his no-contest plea, as required by Wis. Stat. § 974.08(1)(c).

Some background: Romero-Georgana was convicted on a no-contest plea of sexual assault of a six-year-old girl. The plea forms, which were provided in English and Spanish, notified Romero-Georgana that if he is not a citizen of the United States, his plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law. However, the court did not orally advise Romero-Georgana of the deportation consequences of his no-contest plea as required by Wis. Stat. § 974.08(1)(c). The court accepted the plea and sentenced Romero-Georgana to 12 years' initial confinement and four years' extended supervision.

In Romero-Georgana's first post-conviction proceedings, he was represented by Atty. Suzanne Hagopian. She argued the sentencing court failed to consider the sentencing guidelines as required by State v. Grady, 2007 WI 81, ¶44, 302 Wis. 2d 80, 734 N.W.2d 364. The Court of Appeals reversed the judgment and remanded the matter for resentencing. After substitution of judge, the trial court imposed a sentence of 20 years' initial confinement and eight years' extended supervision.

In Romero-Georgana's second post-conviction proceedings, he was represented by Atty. Tajara Dommershausen, who filed a post-conviction motion alleging ineffective assistance of counsel based on the request to substitute judge.

The circuit court denied the motion and Dommershausen filed a no-merit report. The Court of Appeals limited the review to issues arising out of the resentencing hearing, specifically disallowing issues relating to the initial plea hearing, and summarily affirmed the judgment. The Supreme Court previously denied review of that decision.

Romero-Georgana brought the post-conviction motion at issue here, arguing ineffective assistance of his trial and post-conviction counsel. The trial court denied the motion without a hearing.

Romero-Georgana appealed, unsuccessfully. The Court of Appeals noted that Romero-Georgana failed to establish that the deportation issue would have been stronger than the issue that Atty. Hagopian actually presented, which resulted in reversal of the judgment of conviction and a remand for resentencing. The Court of Appeals also noted that Romero-Georgana failed to explain why he would have given up a favorable plea agreement and risked additional charges to take his chances at trial had he been properly advised about the possibility of deportation. From Brown County.

2012AP2513-CR State v. Myrick This homicide case involves two defendants, one of whom testified against the other as part of what he contends was a plea agreement with prosecutors. The question before the Supreme Court is whether statements made by defendant Rapheal Lyfold Myrick during testimony at the preliminary examination stage of Justin Winston's case are then admissible in the case against Myrick himself.

Some background: Myrick and Justin Winston were involved in the murder of Marquise Harris. The defendant admitted that he shot at Harris but claimed he missed him. He said Winston killed Harris by riddling him with bullets from an assault rifle. The state wanted the defendant's testimony against Winston and it sent a letter to defense counsel saying the state was "making the following offer of resolution based on Mr. Myrick being willing to cooperate in the prosecution of numerous cases involving Justin Winston." The terms of the offer are set forth at length at pages three and four of the Court of Appeals' decision.

As called for by the offer, the state debriefed the defendant, and the defendant testified at Winston's preliminary examination. The offer had provided that, "It will be at the discretion of said district attorney's office . . . as to whether the above negotiation will be conveyed to you to settle the [case] short of trial." After the defendant testified at Winston's preliminary examination, he stopped cooperating with the state after he was apparently disturbed by a newspaper article that he believed the state leaked and that he believed was false.

The trial court allowed the state to use Myrick's preliminary examination testimony in its case-in-chief. He was convicted of first-degree intentional homicide as a party to the crime. Myrick appealed, and the Court of Appeals reversed.

The Court of Appeals agreed with Myrick's argument that the trial court erroneously allowed the state to read to the jury as part of its case Myrick's preliminary examination testimony in the prosecution of Winston, the other defendant. The Court of Appeals concluded this evidence was prohibited by Rule 904.10, which reads: "Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible."

The Court of Appeals said what was at issue on appeal was whether the defendant's preliminary examination testimony was "in connection" with his offer to the prosecutor rather than merely an offer the prosecutor made to him. It said the case also presented the question whether, under Wisconsin case law, the defendant's preliminary examination testimony was protected by Rule 904.10.

The Court of Appeals concluded that a fair and complete reading of the state's proffer letter showed that the defendant in fact made an offer to the prosecuting attorney to plead guilty as required by Rule 904.10.

The court reasoned the state was prepared to offer the defendant a significantly reduced charge and lenient sentencing recommendation provided that the defendant complied with what the letter required. The Court of Appeals said it was unreasonable to suggest that the reduced charge and more lenient sentencing recommendation was not part of the defendant's reciprocal offer to the state. The court said the only way the defendant could get the offered sentencing recommendation was to plead guilty or no contest and thus the defendant's offer to the prosecuting attorney was implicit in the prosecutor's letter.

The specific issue raised in the state's petition for review is: Did the Court of Appeals act in excess of its jurisdiction and usurp the exclusive authority of the Supreme Court by effectively amending a statutory rule of evidence to make it applicable in a situation expressly excluded by the Supreme Court when it promulgated the rule? From Milwaukee County.

2011AP1467-CR State v. Anderson This homicide case examines the discretionary power of the Court of Appeals to grant a new insanity phase trial on the ground that an allegedly harmless error in a jury instruction prevented the real controversy from being fully tried.

Some background: Donyil Leeiton Anderson, Sr. was charged with intentional first-degree homicide for the 2008 fatal stabbing of his former girlfriend, Stacey Hosey, and attempted first-degree intentional homicide for also attempting to stab to death Hosey's boyfriend, Brandon Beavers-Jackson. The crime was committed in the early morning hours of Aug. 9, 2008, in Hosey's home.

Anderson entered pleas of not guilty and not guilty by reason of mental disease or defect. At the guilt phase of Anderson's jury trial, the State presented uncontradicted evidence that shortly before 3 a.m. on Aug. 9, 2008, Anderson arrived at the residence he had previously shared with Hosey, with whom he had a one-year-old son. Upon his arrival, Anderson saw the car of Hosey's new boyfriend, Beavers-Jackson, parked outside. Anderson went to his own car and got his car stereo and used it to smash the windows of Beavers-Jackson's car. A neighbor saw Anderson kick in the back door of the house and enter. The neighbor called 911. She heard Hosey yell "get out," then heard screaming; she heard Hosey say, "I love you," and Anderson respond, "you lying bitch."

Anderson stabbed Hosey repeatedly. He then fought with and stabbed Beavers-Jackson. Anderson and Hosey's one-year-old son, who was present in the home, was not injured. Anderson then cut his own wrists. He was subdued at the scene by police after refusing orders to put down his knife.

Hosey died as a result of multiple knife wounds. Beavers-Jackson survived. Later in the hospital, Anderson told police he had been drinking before the incident, but was not intoxicated. He said that Hosey and Beavers-Jackson were taunting him, and he was in a jealous rage and just snapped. He also said that he had been taking a prescription drug, Strattera, for attention-deficit disorder that made him "real edgy."

Anderson was found guilty after entering an Alford plea, and the insanity phase trial was then tried to a jury. During the insanity phase of the trial, witnesses from each side provided conflicting testimony as to whether Anderson was suffering from a mental disorder under Wisconsin Stat. § 971.15(1) and to what extent prescription drugs, alcohol or depression may have affected Anderson.

Wisconsin Stat. § 971.15(1) provides: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law."

A jury instruction conference was held. The parties and the court discussed the extent to which a mental state caused by taking a prescription medication or a mental state caused by the voluntary taking of a prescription drug and alcohol constitutes a mental defect within the meaning of the insanity defense law.

The jury found Anderson did not meet his burden of proving he had a mental defect. Anderson appealed. He challenged the last sentence of the jury instruction: "…A temporary mental state which is brought into existence by the voluntary taking of drugs or alcohol does not constitute a mental defect."

The Court of Appeals first agreed that the instruction was flawed but also concluded that Anderson had forfeited his challenge because he did not make a sufficient particularized objection in the trial court. The state does not contest this finding.

The Court of Appeals then granted Anderson a new insanity phase trial in the interest of justice on the ground the erroneous instruction prevented the real controversy from being fully tried.

The state appealed to the Supreme Court. A decision could clarify what constitutes mental defect under a portion of Stat. § 971.15(1) and the discretionary power of the Court of Appeals to grant a new insanity trial. From Rock County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court: